FREE SPEECH — If the "empathy" Judge Sonia Sotomayor would bring to the Supreme Court means the ready ability to identify with the weaker against the more powerful, don't expect it to extend to the speech rights of students against school officials who would squelch their criticism.
That's the point made recently by journalist Ed Brayton on his blog, Dispatches from the Culture Wars. And he's not the only one not expecting a Justice Sotomayor to be a passionate First Amendment champion.
some of Sotomayor's other rulings dealing with the first amendment and
concludes essentially the same thing I and others have concluded after
looking at many of her rulings, that Judge Sotomayor tends to take a
very careful, thorough and technical approach to applying the law that
seems to lack an overarching vision of constitutional interpretation:
the federal district and circuit courts reveal a far more humble-minded
jurist, one more concerned with context than with concepts, more
attentive to discerning facts than with announcing new doctrine, and
one who is more focused on applying law than developing it…
Perhaps her experience as a trial judge explains Judge Sotomayor's
attention to facts, the importance of context and the need to apply the
controlling law in a rigorous way duly attentive to what is or is not
in the trial record. As previously noted, this approach to the First
Amendment could prove salutary in some kinds of cases, as with the
secondary-effects doctrine or the government employee-speech doctrine.
Then again, it might lead to the kind of fact-specific jurisprudence
championed by Justice Stephen Breyer in the religious monument cases —
McCreary County, Ky. v. ACLU of Kentucky (2005) and Van Orden v. Perry
(2005) — or to the confusing law of obscenity prior to Miller v.
What we now know of Sotomayor's First Amendment record seems
consistent with the generalizations mentioned above. What we don't know
is how that record and her contextual approach to decision-making will
play out when, if confirmed, she is called upon to consider new
exceptions to the First Amendment (see United States v. Stevens) or
free-speech challenges to broadcast indecency regulations (see FCC v.
Fox) or attempts to ban new kinds of commercial speech (see IMS Health,
Inc. v. Ayotte).
Absent the kind of about-face we saw with Sen. Black when he became
a justice, or the kind of jurisprudential development we have witnessed
with Justice Anthony Kennedy, Sotomayor's First Amendment legacy is
unlikely to be significant. Then again, she might surprise us.
I think this helps me to finally put my finger on why I am
disappointed in the Sotomayor nomination. To some extent, one's
approach to the law is independent of one's ideology. Sotomayor's
minimalist, very technical approach to the law is mirrored most closely
on the current court by Chief Justice John Roberts and Justice Alito.
All three tend to eschew the kind of broad and bold statements, what is
often called bright line jurisprudence, favored by Justice Scalia and
But what I wanted to see on the court was someone who does have an
overarching vision of what the constitution is supposed to mean. I
prefer the judicial approach of Scalia and Thomas even while
rejecting the particular interpretations they would apply in almost all
cases. And I was really hoping for a liberal equivalent of that,
someone who could offer a bold and distinct paradigm to counter that of
Scalia and Thomas.